Law Times

Law Times • may 15, 2017 Page 5 www.lawtimesnews.com NEWS Believed study would 'seal the deal' Pfizer class action falters in Ontario BY ALEX ROBINSON Law Times L awyers say the discon- tinuation of a class action lawsuit against Pfizer Canada highlights the risks of taking on pharmaceuti- cal cases — an area where evi- dence is f luid as science evolves. In Parker v. Pfizer Canada Inc., a certified class action law- suit was discontinued despite the fact that a similar claim against the pharmaceutical company in the United States had been settled for US$273 million a few years earlier. After the Ontario claim was released, a new study was released that came to definitive conclu- sions that greatly diminished the claim's chance at success. Lawyers say the case dem- onstrates the inherent risks in health cases concerning phar- maceuticals or medical devices where you do not have complete evidence at the outset and you wait for the results of a third- party study. "The facts may turn against you," says Margaret Waddell, counsel with Phillips Gill LLP, who was not involved in the case. The case concerned whether a prescription drug called varen- icline or Champix sold by Pfizer used for nicotine addiction had neuropsychiatric side effects for those who took it. The plaintiffs had claimed that, after ingesting the drug, they experienced side effects, such as depression and suicidal tendencies. The lead plaintiff, Kenneth Parker, sued Pfizer for breach of a duty to warn of the drug's al- leged side effects. The plaintiffs claimed that a black box warning that had been placed on the drug in 2010 should have been on its mar- keting materials from the point that it started selling the drug in Canada. The Ontario class action was certified in 2012. The American litigation was settled in 2013, shortly before it was set to go to trial. The Ontario action, which had 415 registered class mem- bers, was not settled and the par- ties proceeded to discovery. But before discovery was complete, the plaintiffs felt it ne- cessary to pause and wait for the results of a large-scale clinical study — called the Eagles Study — that was being carried out to determine the safety of the drug. When the study was released in 2016, it contradicted Parker's claim. Douglas Lennox, the lawyer who represented the plaintiffs in the class action, says he believed the study would "seal the deal" as earlier research had been sup- portive of the allegations in the claim. But the study pointed in the other direction. "We did our best, but ultim- ately we have to respect the sci- ence . . . In this case, the science changed quite drastically four years into the case and I think we acted responsibly in dealing with that," says Lennox, who is a senior class action lawyer at Klein Lawyers LLP. The Eagles study found that the drug did not do what the plaintiffs alleged it did. After its release, the plaintiffs moved to have the action dis- continued. Health Canada, the U.S. Food and Drug Administration and European Medicines Agency all subsequently removed black box warnings that had been placed on Champix because of fears of possible adverse side effects. Pfizer agreed to the discon- tinuance without costs, and Ontario Court Justice Paul Per- ell approved the motion to dis- continue the claim, "given the remote prospects of success," of what he said had become "an extraordinarily risky litigation to pursue." The plaintiffs said that they might have still arguably had a claim based on negligence, as Pfizer had allegedly failed to conduct its own study similar to the Eagles one after the FDA had placed its black box warning on the drug in 2009. But the evidence in the Eagles study supported Pfizer's pos- ition on "generic causation" — making the plaintiffs' chances of winning remote, their factum said. "While there remains other evidence that the plaintiff could potentially rely upon at such a trial . . . Class Counsel's assess- ment is that the balance of the evidence favours the defendant," the plaintiffs' factum said. The plaintiffs pointed to a number of aspects that ac- counted for the differences in outcome between the American and Canadian actions, includ- ing differences between the two countries' legal systems. They also said that at the time of the American settlements, trials were imminent in the proceedings and that they were settled based on the scientific evidence that existed at the time. Lennox says that the U.S. court system is simply faster than Ontario's and that there are resource issues in the province's courts that do affect results. Cases that take longer to resolve reach different outcomes than ones that are faster, he says. But Lennox says he brought the case in good faith and he dis- continued it in good faith. "Speed of litigation in this case did lead to a different result, but all I would say is I want to win for the right reasons," says Lennox. "I don't want to have a de- fendant settling because the case is rushed. I want parties settling because the merits are there and this case took longer than the American litigation and the sci- ence changed. It is what it is." Geoffrey Hunnisett, a law- yer with Osler Hoskin & Har- court LLP, who was not involved in the case, says that the case shows that defendants should do everything they can to ensure that they get results in advance of going to trial. "Needless to say, the reverse is also true," he says. "Regardless of how the re- sults come out, it demonstrates that litigation and this kind of product liability litigation, and in particular pharmaceuticals, is subject to these types of studies that are often going on concur- rently with litigation." Hunnisett adds that it is rare for a study to come out during litigation that was as categorical and conclusive in its findings as the Eagle study was. He says it is also unusual for such a situation in which both parties agree to delay a proceed- ing, each expecting the study will be favourable to them. "It's a bit of a crap shoot. . . . Presumably, the plaintiff expect- ed the results of the study to be helpful to the class proceeding," he says. "So that's why he was willing to wait in those circum- stances; and the defendants, I presume, thought it would also be helpful to them." Lennox says the larger les- son of the case is that defendants should agree to certification and get on with the merits of a case and see what happens. The discontinuance deci- sion said there had also been an agreement to discontinue pro- posed companion class actions lawsuits in other provinces such as B.C., Alberta and Quebec in light of the study. "I would expect that my de- fence colleagues, if it were the other way, would have reacted appropriately in the face of sci- ence that had gone against them," Lennox says. "In any medical products class action, the science does de- velop. Science is not a static en- terprise." Waddell says the plaintiffs should not be faulted for waiting for the results, as it was a calcu- lated risk that did not turn out in their favour. "More power to the lawyers who are prepared to take on these kinds of cases, because the risks are so much higher than they are where you're looking at something that happened in the past and the facts aren't chang- ing," she says. Randy Sutton, a partner with Norton Rose Fulbright Canada LLP, who represented Pfizer in the case, declined to comment on the matter. A spokeswoman for Pfizer Canada also declined to com- ment on the decision to discon- tinue the class action lawsuit. LT Douglas Lennox says a discontinuation of a class action lawsuit against Pfizer Canada was done in good faith. 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